Law and Contemporary Problems最新文献

{"title":"Scientific Models of Human Health Risk Analysis in Legal and Policy Decisions","authors":"D. Crawford‐Brown","doi":"10.2307/1192291","DOIUrl":"https://doi.org/10.2307/1192291","url":null,"abstract":"DOUGLAS CRAWFORD-BROWN [*] I INTRODUCTION Scientists working in the fields of law or policy faced with risk-based decisions find themselves in very different positions epistemologically than those in the routine practice of science. First, risk assessment is an interdisciplinary activity, requiring the piecing together of expertise from many fields. Only a community of scientists could possess so much expertise. It is problematic when a single scientist, or a small group of them, is called upon to speak on behalf of the entire community. Second, science is by nature forward-looking. It is a process by which truth is progressively refined and approached, rather than an end point. In court, or in the policy arena, however, scientists are called on to \"freeze\" this process in a snapshot that will be regarded as final. Scientists may have little or no experience in this activity. The quality of scientific predictions of risk in the courtroom and policy arena rests in large measure on how these two differences between the normal practice and the legal/po licy practice of science are reconciled. This article considers a variety of issues that arise in reconciling these differences, and the problems that remain with scientific estimates of risk when these are used in decisions. II DEFINITION OF RISK Before turning to the issues arising from risk predictions, a definition of risk is needed. Three schools of thought are prevalent in the field of risk assessment. [1] (1) Objective risk. This school treats risk as an objective property of the world, much like any other scientific concept. Risk is identified with a combination of the probability and the severity of an outcome. [2] Often, the combination is the mathematical product of the probability and the severity, but this operation is not scientifically or logically necessary, as is demonstrated by the fact that there are competing operations in the scientific community such as Quality Adjusted Life Years (\"QALY\"). [3] (2) Subjective risk. This school treats risk as a subjective property of individuals in a society. Risk is identified as the degree of concern, or dread, expressed by an individual over some situation. It is measured using polls based on expressed or revealed opinions. [4] (3) Psychologistic risk. This school treats risk as a property of epistemological reflection, or analysis of existing evidence. Risk is identified as the degree of evidentiary support for the belief that an adverse effect will occur under certain circumstances. This school shares features with the objective school, such as the recognition that risks are related to probabilities. It is closer, however, to the Bayesian conception of probability because the objective school employs a long-term frequency concept of probability. [5] While some social scientists adhere to the subjective concept of risk, it generally is not the concept employed in the practice of natural science or in legal or policy decisionmaking. The differe","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"43 1","pages":"63-82"},"PeriodicalIF":0.0,"publicationDate":"2001-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86008588","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rationalism and Empiricism in Modern Medicine","authors":"W. Newton","doi":"10.2307/1192299","DOIUrl":"https://doi.org/10.2307/1192299","url":null,"abstract":"WARREN NEWTON [*] I INTRODUCTION About ten years ago, after fellowships and clinical experience in a community setting, I had my first experience as a ward attending in a university hospital. [1] We were working with cardiac patients, and I was struck by the common treatment each patient received. No matter what the symptoms, patients received an exercise treadmill, an echocardiogram, and were put on a calcium channel blocker. [2] This was remarkable at the time because there were in excess of thirty randomized controlled trials showing the benefit of beta-blockers, a different class of medicines, to treat patients following a heart attack. Indeed, by 1990, there was initial evidence that calcium channel blockers not only failed to improve outcomes, but actually made them worse. The point is not to criticize the medical culture at that hospital--similar examples can be found at every medical center--but rather to explore why there was so much fondness for calcium channel blockers. One factor was the substantial drug company support of faculty research on silent myocardial ischemia. Another factor was what might be called medical fashion. The most likely explanation, however, was more fundamental. For my cardiology colleagues, it was biologically plausible that calcium channel blockers were better than betablockers. Like beta-blockers, calcium channel blockers reduce heart rate and myocardial wall stress, but they lack the side effects of beta-blockers. In other words, what was important to my colleagues was not the outcome of the critical trials, but our understanding of the mechanisms of disease. This is an example of the tension between rationalism and empiricism in medicine. Rationalism is the search for and emphasis on basic mechanisms of disease, which then color all clinical decisions. Empiricism is defined as the emphasis on the outcomes of individual patients and groups of patients. My thesis is that there is an ongoing and fundamental tension between these two different ways of thinking. While these ways of thinking can be complementary, the tension persists, exploding around specific clinical and legal controversies. Understanding the tension between rationalism and empiricism provides important background in considering the role of expert advice. Part II of this article explores the roots of rationalism and empiricism in the Hippocratic tradition. Using the Flexner report as a text, Part III emphasizes the triumph of the rationalists in the founding of modern medicine. Part IV briefly describes the development of clinical epidemiology and the evidence-based medicine over the last thirty years. Part VI attempts to explicate how this tension illuminates fundamental clinical and policy questions that doctors, the health care system, and the legal system confront today. My goal is not to present a detailed explication of the epistemology of medical science, but rather an intellectual history [3] sketching out what has animated the thinking","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"21 1","pages":"299-316"},"PeriodicalIF":0.0,"publicationDate":"2001-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82780244","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Beyond \"It Just Ain't Worth It\": Alternative Strategies for Damage Class Action Reform","authors":"D. Hensler, Thomas D. Rowe","doi":"10.2139/SSRN.274949","DOIUrl":"https://doi.org/10.2139/SSRN.274949","url":null,"abstract":"In this article we explore alternative strategies for class action reform aimed at improving the cost-benefit ratio of a damage class action regime. Our analysis draws on RAND's recently completed study of contemporary damage class action practice and on the extensive theoretical literature on entrepreneurial litigation. Our goal is to identify mechanisms for enhancing the system's capacity to screen out non-meritorious suits, while preserving access for meritorious actions. While recognizing other concerns related to class actions (such as agency problems between class counsel and class members, and ethical issues), we do not address these problems except as they pertain to the question of screening. Similarly, we do not attempt to discuss the full range of proposals that have been put forward to address the various perceived problems relating to damage class actions, but instead focus on those proposals that are most relevant to the question of screening. The first two strategies we consider would attempt to enhance the system's screening capacity directly, at the front end of the litigation process, by applying a cost-benefit test at the time of certification, or by requiring class members to decide whether to participate at the inception of litigation. We conclude that it is unlikely that judges could apply a cost-benefit test fairly and consistently, and that an opt-in requirement might screen out as many meritorious suits as non-meritorious actions (if not more). The next two strategies would attempt to enhance the system's screening capacity indirectly, at the back end rather than the front end. The first and relatively non-controversial back-end strategy relies on judges to use more vigorously their authority to scrutinize class action settlements and fee award requests. By better calibrating the benefits to class members and financial rewards to class counsel, more rigorous judicial management would drive out \"bad\" class actions while maintaining access for meritorious lawsuits. The theoretical literature on entrepreneurial litigation and RAND's case study investigations provide the grounding for this strategy. While we believe that increased judicial scrutiny could substantially improve the system's screening capacity, relying solely on judicial discretion for regulatory purposes has some obvious weaknesses?particularly in our federal system, in which parties who cannot satisfy one judge may simply depart that jurisdiction for another whose judges are more congenial. Hence we consider a different and more controversial approach to re-calibrating incentives to file and settle non-meritorious suits: adopting loser-pays attorney fee-shifting for certified damage class actions, with liability on the plaintiffs' side borne by class counsel. Although critics of class actions have proposed other manipulations of financial incentives, such as auctions, to improve the cost-benefit ratio of damage class actions, those who support the use of repre","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"4 1","pages":"137-162"},"PeriodicalIF":0.0,"publicationDate":"2001-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88754204","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Aggregation, Auctions, and other Developments in the Selection of Lead Counsel Under the PSLRA","authors":"Jill E. Fisch","doi":"10.2139/SSRN.261580","DOIUrl":"https://doi.org/10.2139/SSRN.261580","url":null,"abstract":"This article focuses on aggregation and auctions, two key litigation developments in the selection of counsel under the Private Securities Litigation Reform Act of 1995. After reviewing some of the background concerns, including collective action problems presented by the class action structure and issues regarding the award of attorneys fees, the article explains how the lead plaintiff provision, adopted by Congress, addresses these concerns through a model of client empowerment. The article then explains two recent trends: the use of lead counsel groups, in which courts appoint multiple investors and aggregate their holdings, and the use of an auction procedure to select lead counsel and determine counsel fees. The trends deal with facially separate issues, yet they are disturbing for the same reasons. First, both aggregation and lead counsel auctions weaken the relationship between the lead plaintiff and class counsel and specifically reduce the ability of the lead plaintiff to exert control over litigation decisionmaking. Second, both trends lead to serious problems in implementing the lead plaintiff provision. Finally, the trends maintain an active judicial role in supervising the conduct of the litigation. The article challenges the propriety of aggregation and auctions under the PSLRA, arguing that neither development is supported by the statutory text or legislative history. The article further argues that these approaches are inconsistent with and likely to frustrate the objectives of the PSLRA. Courts that appoint groups of unrelated investors as lead plaintiffs will face difficult questions of appropriate group size and composition. Lead plaintiff groups are unlikely to function in accordance with the statutory design; in particular, they are unlikely to select or monitor class counsel effectively. Selection of lead counsel by auction is not an attractive alternative. Lead counsel auctions present substantial issues in design and implementation, and there is little reason to believe that a judicially conducted auction can replicate the market process or result in a selection decision and fee award more appropriate than the decisions made by a suitable lead plaintiff. Finally, the article argues that both developments are based on the mistaken perception that class action abuses can be addressed through judicial oversight. In adopting the lead plaintiff provision, however, Congress expressly rejected this premise. The effect of both aggregation and lead counsel auctions is to maintain judicial empowerment at the expense of client control. This approach undermines the potential for client empowerment to achieve meaningful litigation reform.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"13 1","pages":"53-96"},"PeriodicalIF":0.0,"publicationDate":"2001-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81397017","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Scientific Misconceptions Among Daubert Gatekeepers: The Need for Reform of Expert Review Procedures","authors":"J. Beyea, D. Berger","doi":"10.2307/1192316","DOIUrl":"https://doi.org/10.2307/1192316","url":null,"abstract":"JAN BEYEA [*] DANIEL BERGER [**] I INTRODUCTION The Supreme Court's opinions in Daubert v. Merrell Dow Pharmaceuticals, Inc. [1], General Electric Company v. Joiner [2], and Kumho Tire v. Carmichael [3] contain two inconsistent views of science. In some places, the Court views science as an imperfect \"process\" for refining theories, whereas in other places, the Court views science as universal knowledge derived through \"formal logic.\" The latter view, long out of favor with philosophers and historians of science, comports with the current cultural vision of science and is likely to be adopted by district and appeals court judges, without vigorous \"education,\" or until such time as higher courts recognize that the two views need to be synthesized into a consistent whole. The interpretation of science as seamless logic puts an undue burden on scientific experts who are challenged under Daubert. In fact, Daubert, as interpreted by \"logician\" judges, can amount to a super-Frye [4] test requiring universal acceptance of the reasoning in an expert's testimony. It also can, in effect, raise the burden of proof in science-dominated cases from the acceptable \"more likely than not\" standard to the nearly impossible burden of \"beyond a reasonable doubt.\" Instead of relying solely on the second view, courts should combine the two. A synthesis of the two views of science can be achieved by recognizing that subjective assumptions and inferences can never be completely eliminated from expert testimony. As a result, expert testimony always amounts, in effect, to conditional statements. An expert's statements can be considered \"reasonable\"--or likely, or beyond a reasonable doubt--if, and only if, the assumptions and inferences made by the expert are considered reasonable, or likely, or beyond a reasonable doubt. This \"Bayesian\" approach [5] may offer a pragmatic synthesis of the tension in the Daubert decisions for science-dominated cases, provided that courts can find ways to judge fairly the reasonableness of underlying scientific assumptions. This article offers a number of proposals to meet this goal, along with other suggestions for reform of the Daubert review process. The gatekeeping function assigned to judges by the Daubert decision and strengthened by the subsequent Supreme Court cases Joiner and Kumho Tire, has been both vilified and praised in the legal literature. [6] This article supports the critics of Daubert, who see science as a contentious process, rather than a catalog of truths, and who argue that courts are now demanding more of individual scientists and engineers than is expected of them in their own research and practice. Moreover this article follows cues about science from world-renowned scientists, including Neils Bohr [7] and Norbert Wiener, [8] and influential philosophers of science, such as Thomas Kuhn, [9] all of whom have written about the limitations of individual scientists and the subjective elements inherent in the scientific","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"96 1","pages":"327-372"},"PeriodicalIF":0.0,"publicationDate":"2001-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81897918","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Confronting the Future: Coping with Discovery of Electronic Material","authors":"R. Marcus","doi":"10.2307/1192313","DOIUrl":"https://doi.org/10.2307/1192313","url":null,"abstract":"The question for the present is whether this new development calls for a reconsideration of our rules or methods of discovery. Ideally, a procedural system should be designed so that it can cope with technological (and other) developments without a major overhaul, and perhaps without any revision. For instance, in 1999, the Supreme Court dealt with the thorny problem of interpreting a 1949 amendment to the removal statute in a case involving a “courtesy copy” of the complaint sent by fax. The court noted that Congress could not have foreseen the use of this technology when it amended the statute in 1949 but did not find that fact critical to interpreting the statute suitably for the era of faxed communications. The question whether the advent of the Internet generation calls for a reexamination of other procedural techniques and rules has divided scholars. Although the Supreme Court has noted that the Internet is “a unique and wholly new medium of worldwide human communication,” that does not mean that existing doctrines governing the limits of personal jurisdiction, for example, must be revised to cope with the new technology. Thus, some scholars argue that personal jurisdiction issues raised by Internet activity can be readily analyzed under the existing legal rules while others see the Internet as upsetting the apple cart of contemporary personal jurisdiction rules. This article addresses similar issues about the rules governing discovery. It first sketches the background of the current rules, for this is not the first time someone has argued that the discovery rules are no longer suitable for the challenges of contemporary discovery, particularly in complex cases. The article then examines the ways in which the discovery of electronically stored materials might present qualitatively different problems from those raised by the discovery of hard copy materials. Against that background, it surveys possible courses of action, by rule amendment or otherwise, and concludes that no clear solution has yet emerged. Indeed, as members of the generation that has seen the most vigorous challenge to unfettered discovery, we might conclude that there is really no generation gap because the types of discovery problems that arise with the new technology are analogous to those presented by hard copy discovery.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"1 1","pages":"253-282"},"PeriodicalIF":0.0,"publicationDate":"2001-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82944756","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Modest Reform for Federal Procedural Rulemaking","authors":"C. Tobias","doi":"10.2307/1192314","DOIUrl":"https://doi.org/10.2307/1192314","url":null,"abstract":"CARL TOBIAS [*] The Judicial Conference of the United States Advisory Committee on Civil Rules (the \"Advisory Committee\"), which has primary responsibility to study the Federal Rules of Civil Procedure (the \"Federal Rules\") and to formulate recommendations for improvement, recently developed a thorough package of revisions to the Federal Rules that govern discovery. [1] During April 2000, the United States Supreme Court promulgated essentially intact the set of amendments that the Advisory Committee had proposed. [2] Those changes became effective in December 2000. [3] The rule revision entities commissioned discovery studies, developed proposals, and solicited and considered extensive public input on the recommended alterations to the Federal Rules. Despite concerted effort, the efficacy of the new amendments remains unclear, partly because federal district courts have not actually applied them. The revisions, this deficiency in the amendment process, and prospects for its remediation warrant analysis. The efforts to revise the rules commenced several years ago. In 1996, the Advisory Committee appointed a Discovery Subcommittee that it asked to explore the prospect of additional changes to the Federal Rules' discovery provisions, a number of which the Supreme Court had amended as recently as 1993. [4] The Discovery Subcommittee investigated the necessity of further altering the discovery provisions, in part by commissioning several assessments that two expert entities conducted. One of these institutions was the Federal Judicial. Center (the \"FJC\"), the principal research arm of the federal courts. [5] The second body was the Institute for Civil Justice of the RAND Corporation (the \"ICJ\"), which had recently completed a comprehensive evaluation of the procedures for reducing expense and delay adopted and enforced by the ninety-four federal district courts under the Civil Justice Reform Act (the \"CJRA\") of 1990. [6] The FJC and the ICJ collected and analyzed considerable empirical data on the application an d operation of the 1993 revisions of the Federal Rules. [7] The Advisory Committee substantially relied on those studies in formulating a group of proposed amendments to the discovery rules for the consideration of the Judicial Conference Committee on Rules of Practice and Procedure (the \"Standing Committee\"), [8] which reviews proposals developed by the advisory committees on appellate, bankruptcy, civil, criminal, and evidentiary rules. The Standing Committee instituted few modifications to the Advisory Committee draft and published proposed revisions on which it sought public input. [9] The Standing Committee then evaluated the public comments, minimally changed the suggested alterations, and, in 1999, compiled a final package of proposed amendments for the Judicial Conference, the policymaking arm of the federal courts. [10] The Conference made one modification in the set that the Advisory Committee tendered [11] and submitted the group to","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"128 2","pages":"283-287"},"PeriodicalIF":0.0,"publicationDate":"2001-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1192314","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72486325","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Pleading Securities Fraud","authors":"E. Weiss","doi":"10.2139/SSRN.245769","DOIUrl":"https://doi.org/10.2139/SSRN.245769","url":null,"abstract":"In the roughly five years since the Private Securities Litigation Reform Act of 1995 became law, courts and commentators have devoted considerable attention to two questions relating to the requirement, set forth in section 21D(b)(2), that a complaint alleging securities fraud must \"state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.\" Those questions concern: (1) What constitutes \"the required state of mind\" in suits under section 10(b) and Rule 10b-5? And (2) Are facts indicating a defendant had a motive and the opportunity to engage in fraud, standing alone, sufficient to create a strong inference that that defendant acted with the required state of mind? Courts and commentators have devoted far less attention to what I call the Basis Requirement - the portion of section 21D(b)(1) that requires a plaintiff to specifying not only \"each statement alleged to have been misleading\" and \"the reason or reasons why the statement is misleading,\" but also, with respect to every allegation made on information and belief, \"all facts on which that belief is formed.\" This article argues that issues relating to the Basis Requirement in the long run will prove to be far more significant than the issues relating to motive, opportunity and degrees of recklessness that have preoccupied courts and commentators to date. A threshold question is the amount and quality of corroborating information a plaintiff must include in her complaint. The article explains why, in order to implement Congress' goal of discouraging the filing and prosecution of speculative claims of securities fraud, courts must adopt an interpretation of the Basis Requirement similar to that adopted by the Ninth and First Circuits in In re Silicon Graphics Securities Litigation and Greebel v. FTP Software, respectively. Only by doing so will courts prevent plaintiffs from continuing to make speculative allegations of fraud and then relying on the discovery process to seek evidence to support their claims. The article next highlights two additional holdings in Greebel: (1) A court must consider the nature of the corroborating information plaintiff has provided when evaluating whether plaintiff has pled facts sufficient to create a strong inference of scienter. (2) The Reform Act effectively rejects the notice pleading philosophy reflected in Conley v. Gibson by requiring plaintiffs in securities fraud actions to plead facts that give rise to a strong, rather than merely a reasonable, inference of scienter. Using the analytic framework created by Greebel and Silicon Graphics, the article then considers two cases currently pending in courts in the Second and Third Circuits. The first is Novak v. Kasaks, in which the Second Circuit reversed and remanded a district court decision granting a motion to dismiss. The article points out that the Second Circuit's opinion is rather muddled, but can be reconciled with Silicon Graphics and Gr","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"28 1","pages":"5-52"},"PeriodicalIF":0.0,"publicationDate":"2001-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80160491","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Ulysses Tied to the Generic Whipping Post: The Continuing Odyssey of Discovery “Reform”","authors":"J. Stempel","doi":"10.2307/1192312","DOIUrl":"https://doi.org/10.2307/1192312","url":null,"abstract":"JEFFREY W. STEMPEL [*] I INTRODUCTION One need not be a charter member of the Critical Legal Studies Movement (\"CLS\") to see a few fundamental contradictions in litigation practice in the United States. [1] A prominent philosophical tenet of the CLS movement is that law and society are gripped by a \"fundamental contradiction\" and simultaneously seek to embrace contradictory objectives. [2] Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. [3] Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. [4] One Change--the narrowing of the scope of discovery--could have a substantial adverse impact. Its presence on the roster of new amendments demonstrates the degree to which discovery has been blamed unfairly for society's--and the legal profession's--general disgust with litigation. At the same time, the discovery process is never seriously rehabilitated but rather only adjusted in ways that fail to address its fundamental (but manageable) problems in the context of civil litigation. [5] Simultaneously, a litigant's ability to obtain information significantly shrinks, favoring disputants who would provide less information. For the most part, this group is comprised of defendants, particularly products liability and statutory rights defendants. [6] Rulemaking is viewed on the one hand as an apolitical procedure and on the other hand as a \"disguised outcry for tort reform.\" [7] Historically, trial judges in the United States have been vested with great discretion over almost all aspects of litigation--in particular, discovery. [8] Since the Federal Rules of Civil Procedure were enacted in 1938, the default has been broad-based \"relevant-to-the-subject-matter\" discoverability, but judges have always had ample discretion to alter this rule. For much of the long-running debate about discovery, the prevailing view seemed to be that the wise discretion of judges would save us from the potential evils and abuses of discovery (and other litigation evils). [9] Judges were viewed as Solomon-like, able to resolve discovery disputes by contextual decisionmaking on a case-by-case basis. [10] By the 1990s, however, this school of thought seemed to have given way to the view that judges needed to be saved from their own discretion, which was not used frequently enough to limit discovery, or at least subject to a more restrictive default rule. [11] This prong of the \"trend,\" if one can call it th at, encompasses not only civil discovery, but also pleadings and motion papers, as well as criminal sentencing. Another--perhaps equally strong--modern trend continues to accord trial judges substantial discretion. This second trend continues the significant departure from default rules and reins in only highly idiosyncratic judicial discretion expressed ","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"60 1","pages":"197-252"},"PeriodicalIF":0.0,"publicationDate":"2001-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82604447","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Kumho and How We Know","authors":"J. Sanders","doi":"10.2307/1192317","DOIUrl":"https://doi.org/10.2307/1192317","url":null,"abstract":"JOSEPH SANDERS [*] I INTRODUCTION In the summer of 1999, the United States Supreme Court issued the last in a trilogy of 1990s cases dealing with the question of the admissibility of expert testimony in federal courts. [1] In Kumho Tire Co. v. Carmichael, [2] the Court was asked to decide if the judicial gatekeeping role it set forth in the first of these three cases, Daubert v. Merrell Dow Pharmaceuticals, [3] applied only to \"scientific\" knowledge or to all expert testimony. The court concluded that all expert testimony must be both relevant and reliable before it can be admitted, but that the specific factors set forth in Daubert to judge the reliability of scientific evidence may be supplemented and perhaps replaced by other factors when expert testimony is based on \"technical\" or \"other specialized\" knowledge. [4] The opinion explicitly recognized that not all expert testimony can be judged by a single standard because not all experts know things in exactly the same way. [5] This point had been colorfully made five years earlier in the Sixth Circuit's opinion in Berry v. City of Detroit. [6] In Berry, while wrestling with the admissibility of the expert testimony of a \"sociologist cum sheriff\" [7] as to whether the disciplinary practices of the Detroit police department demonstrated a policy of deliberate indifference to the rights of the citizenry, thus giving rise to municipal liability under 42 U.S.C. [sections] 1983, the Sixth Circuit made the following comparison between scientific and nonscientific expert testimony: The distinction between scientific and non-scientific expert testimony is a critical one. By way of illustration, if one wanted to explain to a jury how a bumblebee is able to fly, an aeronautical engineer might be a helpful witness. Since flight principles have some universality, the expert could apply general principles to the case of the bumblebee. Conceivably, even if he had never seen a bumblebee, he still would be qualified to testify, as long as he was familiar with its component parts. On the other hand, if one wanted to prove that bumblebees always take off into the wind, a beekeeper with no scientific training at all would be an acceptable expert witness if a proper foundation were laid for his conclusions. The foundation would not relate to his formal training, but to his firsthand observations. In other words, the beekeeper does not know any more about flight principles than the jurors, but he has seen a lot more bumblebees than they have. [8] How do aeronautical engineers and beekeepers know what they know? How does their knowledge differ and how is it the same? The insight of the Berry opinion is that a satisfactory answer to the legal question of admissibility is in part contingent upon our understanding of the nature of expert knowledge. But this alone is not enough. Admissibility standards are also influenced by the organization of the legal system itself. In this article, I attempt to shed some light on di","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"14 1","pages":"373-416"},"PeriodicalIF":0.0,"publicationDate":"2001-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78913790","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}